DHS Proposed Rule on Public Charge: A Primer

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Some context, please!

In 1952, Congress passed the Immigration Nationality Act of 1952 (which was later amended to be the Immigration Nationality Act of 1965), which dictated the terms under which non-citizens can enter the United States, and the options for paths to different types of legal status. The Immigration Nationality Act (INA) noted that if an immigrant was likely to become a public charge, primarily dependent on government services to survive, they could be denied citizenship.

Once passed, the INA gave power to the Department of Homeland Security (DHS) to oversee its implementation, which in practice meant that DHS became responsible for creating more focused, practical rules which included what specific criteria should be used to determine whether or not someone is likely to become a public charge.

DHS has continued to propose and enact rules to help them effectively implement the immigration processes, as outlined in the INA and given support in the Welfare Reform Act.

What happened?

On September 21, 2018, the Department of Homeland Security (DHS) decided to propose a new rule to redefine what it means to be a public charge. It says that while, yes, non-citizens are legally permitted to take advantage of these benefits, doing so would put them in the category of public charge. That is, they can use the services but if they do, it can be used against them when applying for, and maybe even prevent them from being granted, United States citizenship.

This rule does not need the approval of Congress. Since Congress already approved the INA, and the INA already gave DHS the power to determine whether or not someone is a public charge, DHS is free to propose and implement any additional rules that they feel will help them do their job.

On October 11, 2018, the proposed rule became available on the Federal Register for the public to comment on, giving anybody, regardless of immigration status or age, the ability to share support for, or urge the withdrawal of, the proposed rule. Comments are open for 60 days, until December 10, 2018.

What happens to the comments made on the Federal Register?

In 1946, Congress passed the Administrative Procedure Act, which dictates how administrative agencies of the federal government are able to propose and enact rules. This Act requires that part of proposing a new rule is to publish it on the Federal Register, the daily journal of the federal government, giving the public a chance to comment, and that the administrative agency is then required to respond to each substantive comment before coming to a final decision about whether or not to enact or withdraw the proposed rule.

Making comments in the Federal Register ensure an official public record of the views of the American people on a proposed rule. The hope is that government agencies will act according to the will of the people, and take their feedback into consideration.

Regardless of the outcome, if any individual or organization (like the ACLU) decide to take legal action to challenge a rule, they can use the comments in the Federal Register as evidence in court.

What are supporters of the DHS proposed rule saying?

The Trump Administration is backing the proposed rule, supporting DHS’s effort to expand “public charge” criteria to include recipients of public benefits. DHS Secretary Kirstjen Nielsen, speaking on behalf of the Trump Administration, made the argument that this rule will encourage immigrants to be more self-sufficient, and protect the limited resources that are funded by tax payers.

Strict interpretation of existing public charge restrictions, saying that using public benefits does indeed constitute dependence on the government for survival.

Public opinion in the early 1990s, based on polling data, was mixed on support for welfare for non-citizens.

Since the existing requirements already stipulate that immigrants must wait 5 years before being eligible for public benefits, there is already precedent for non-citizens being treated differently than citizens when it comes to public benefits.

Similar arguments are being made by those who are in favor of the DHS proposed rule today.

What are critics of the DHS proposed rule saying?

Those opposed to the DHS proposed rule believe that non-citizens who are in the country legally, who are paying taxes and eligible to be drafted in times of war, are equally as deserving to take advantage of the services that American provides as they are required to contribute to it.

Other arguments today include:

Immigrant families will now have to choose between obtaining public services and a green card or citizenship. This would penalize people from using legal services that they are lawfully entitled to, and potentially prevent them from putting food on their table, accessing healthcare, and more.

Research done at Harvard and Tufts has shown that immigrants actually financially contribute more to the United States healthcare system than they take out, therefore subsidizing healthcare costs incurred by citizens.

This side of the debate during the 1996 Welfare Reform Act also noted that children of non-citizens, many of whom are in fact citizens themselves, are deserving of, and entitled to, welfare programs for citizens. Preventing their non-citizen parents from obtaining these benefits penalizes the citizen children, and the long-term effects on the development of children if they aren’t able to access food or healthcare can be extremely problematic.

The Reform Jewish Movement strongly opposes the proposed rule, citing the unfair and inhumane choice it would force upon immigrants to choose between benefits and a path to citizenship, and drawing on Jewish text that instructs us that “the strangers who sojourn with you shall be to you as the natives among you” (Leviticus 19:33-34).

“We condemn the administration’s proposal that will force immigrants to choose between advancing their immigration status and accessing vital public benefits that strengthen them and society overall. At this moment when immigrant communities are increasingly vulnerable, individuals are already foregoing needed medical care and food for their children through programs like SNAP out of concern for their immigration status. This new attack by DHS tarnishes America’s legacy as a nation of opportunity, built by immigrants.

“Jewish tradition leaves no room for interpretation when it comes to the treatment of immigrants. In Leviticus we learn: ‘When strangers sojourn with you in your land, you shall not do them wrong. The strangers who sojourn with you shall be to you as the natives among you, and you shall love them as yourself; for you were strangers in the land of Egypt’ [19:33-34]. Compelling people to choose between caring for their health and well being and their immigration status is not loving; it is callous. We call on the Department of Homeland Security to withdraw this proposal.”

What can I do to support the Reform Jewish Movement’s position, and urge DHS to withdraw this proposed rule?

Right now, the most important thing you can do is to submit a public comment to the Federal Register that states your opposition to the proposed rule.

If you have any questions about the proposed rule, or about taking action, you can contact Talia Kaplan, the RAC Legislative Assistant who is running point on this issue, by email at tkaplan@rac.org or by calling her at 202-387-2800.